Director of Public Prosecutions v Allardyce
[2024] VCC 2101
•19 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-23-00980
CR-23-00981
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KANE ALLARDYCE NGATOKOONO TAKO |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 October 2024 | |
DATE OF SENTENCE: | 19 December 2024 | |
CASE MAY BE CITED AS: | DPP v Allardyce & Anor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2101 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Trial - co-accused - guilty pleas to intentionally cause injury – jury verdict of not guilty to home invasion – parity – significant efforts towards rehabilitation – drug use contributing to offending behaviour – relevant prior offending – prospect of deportation – serious offending.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited:Bugmy v The Queen [2013] HCA 3; DPP v Herrmann [2021] VSCA 160; The Queen v Verdins (2007) 16 VR 269; Boulton v The Queen (2014) 46 VR 308; TheQueen v Lacey [2007] VSCA 196; R v McKee [2003] VSCA 16.
Sentence: K Allardyce: 8 months’ imprisonment with 24-month CCO.
N Tako: 8 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Piggott (For trial) Mr S. Devlin (For plea) Mr I. Komesaroff (For sentence) | Office of Public Prosecutions |
| For the Accused Allardyce For the Accused Tako | Mr A. Malik and Mr P. Bloemen | Balmer & Associates Emma Turnbull Lawyers |
HIS HONOUR:
1Kane Allardyce and Ngatokoono Tako, you were each arraigned before me and a jury on 20 August 2024. You both pleaded guilty to a charge of intentionally causing injury, and not guilty to a charge of home invasion.
2A trial proceeded on the charge of home invasion.
3On 29 August, the jury returned verdicts of not guilty in respect to each of you on the charge of home invasion.
4Accordingly, you are now to be sentenced on the charge of intentionally causing injury.
Circumstances of offending
5The circumstances of your offending are set out in the summary of prosecution opening for trial dated 2 May 2024 (as amended to accord with the jury’s verdicts), and the summary of prosecution opening for plea dated 11 October 2024.
6On 24 January 2023, the victim, Jay Karpas, left his house in Carrum Downs, to visit his parents. He was known to you both. As he was leaving his house, he noticed a pile of rubbish and ‘burn out’ marks on his nature strip. On the way to his parents’ house, he rode his motorised bike past your address Mr Allardyce, and as he did so, he threw an aerosol can at your house while yelling out as he rode past. This incident was captured on CCTV footage.
7Mr Karpas was at his parents’ house for about 10 minutes before he returned home.
8Shortly after he got home, you both arrived at his house. Mr Allardyce, you entered Mr Karpas’ property and at some point, picked up and armed yourself with a star picket that was in the front yard.
9Mr Tako, you also entered Mr Karpas’ property, armed with a nail gun that you had brought with you.
10Mr Karpas, who was inside his house, heard loud banging on his side gate. This banging on the gate was partially captured on CCTV footage. You both then kicked open Mr Karpas’ front door.
11Notwithstanding Mr Karpas’ evidence that you, Mr Allardyce, entered the house, I am not satisfied that you did so. To find otherwise would be inconsistent with the jury’s verdicts.
12However, you Mr Tako, entered the house armed with the nail gun. Mr Karpas picked up his baseball bat to protect himself. A struggle between you ensued. Mr Karpas hit your hand with the bat, causing you to drop the nail gun.
13The struggle between you continued and you both ended up outside the house. It was while both men were fighting outside the house that you, Mr Allardyce, used the star picket and stabbed Mr Karpas in the leg.
14Despite the injuries to his leg, Mr Karpas managed to chase you both from his property. He saw you get into a black Nissan X-Trail. He thereafter collapsed to the ground near his front door and called Triple 0.
15Police arrived at 7.57 pm and saw Mr Karpas sitting on the ground outside his house. He was bleeding from injuries to his right thigh.
16Mr Karpas told Senior Constable Crowley that he had been stabbed by you, Mr Allardyce, and that you Mr Tako were also there. Mr Karpas did not know what was used to stab him. He showed Senior Constable Crowley the two large lacerations on his right thigh. He said he remembered being beaten by a cricket bat and did not know what weapon had caused the injuries to his leg.
17Mr Karpas’ conversation with police was recorded on their body worn cameras.
18Paramedics attended Mr Karpas’ address and transported him to hospital. As a result of the attack, Mr Karpas suffered two deep stab wounds to his right thigh. He was placed under general anaesthetic and was operated on to repair the wounds to his thigh. He was discharged from hospital on 26 January 2024.
19Dr Ben Eli gave evidence at trial. He stated that Mr Karpas suffered injuries to his right lateral thigh. There were two deep transverse lacerations in proximity to each other, approximately 8 centimetres in length, involving skin, fascia, and muscle, going through one of the thigh muscles called the ‘vastus lateralis’. Other injuries noted were small, less than 1-centimetre superficial grazes over the face and forehead and mild tenderness.
20Mr Allardyce, you were arrested by police on 27 January 2023. You were interviewed and you admitted attending Mr Karpas’ house. You were remanded until 30 May 2023 when you were granted bail. Your pre-sentence detention is 64 days.
21Mr Tako, you were arrested by police on 8 February 2023. You were interviewed and you admitted that you knew Mr Karpas and knew where he lived as you had been to his house before. You also said that Mr Karpas had been to your home. You were remanded in custody. A bail application was unsuccessful. You were on remand until the jury verdicts at which time I granted you bail. Your pre-sentence detention is 568 days.
Victim Impact Statement
22Mr Karpas made a victim impact statement dated 9 October 2024. It details the impact your offending has had upon him. Mr Karpas states that his life has changed profoundly as a result of your offending, and he has been affected both physically and mentally. He is receiving psychological treatment for depression and other mental health issues.
23Mr Karpas stated that he has changed from enjoying a carefree life to one where he is fearful about leaving his house and he does not enjoy activities that he once enjoyed. He states that due to his injuries he has not been able to work and this has caused him financial distress. He also stated that he is reminded every day of the injuries due to the severe scarring and pain from his wound.
Personal circumstances and background – Kane Allardyce
24Mr Allardyce, you were born in Frankston in 1989. You are now 35 years of age. You, your sister and two maternal half-brothers were raised by your mother and stepfather in the Frankston area. You report that your mother and stepfather were both alcoholics, and from a young age you were subjected to violence at the hands of your stepfather. Your siblings were also subjected to his violence. You report that your stepfather would hit you and forced you to fight with your brothers. He would also force you and your siblings to do jobs around the neighbourhood to obtain money to fund his alcohol and drug use.
25Your education was limited. You left school mid-way through Year 9. Your younger brother has an intellectual disability and was bullied at school. You report you felt compelled to look after him. This often involved you getting into fights. You left school believing you were soon to be expelled.
26On leaving school, you obtained a cabinet making apprenticeship which you undertook for just over a year.
27At the age of 16 you were kicked out of the family home and became homeless. As a result of being homeless you lost your apprenticeship. You report sleeping on the streets between the ages of 16 and 18. You did manage to obtain some casual work during that period in car detailing, furniture removal, concreting and plastering.
28You did not meet your biological father until you were 19. You saw each other for a while but you now only have limited contact with him.
29You have a child aged 16 from an earlier relationship. You have intermittent contact with him.
30You have been in a relationship with your partner, Natalie, since 2013. Together you have one child, aged 7, and your partner has two children from a previous relationship, aged 13 and 16. All children reside with you and Natalie in Carrum Downs. You describe your partner as supportive. You are the sole income earner in the household and your periods of imprisonment have placed considerable strain on your family.
31Approximately four years ago you obtained employment as a landscaper with a company called 'Green Nature'. Other than those times when you were in custody in the last four years, you have worked as a landscaper.
32You report that your relationship with your mother has improved as you got older, although it remains challenging. You also describe a currently positive relationship with your stepfather.
Substance Use
33You have, throughout your years, experienced difficulty with substance abuse. You commenced drinking alcohol at the age of 11. You started smoking cannabis at the age of 14 and, at its peak, you were smoking approximately 2 grams per day. You began using amphetamine at the age of 13. Between the ages of 16 and 19, you report problematic drug use, using amphetamines, ecstasy and cannabis daily. You began using methylamphetamine at the age of 22. Your use of methylamphetamine remained problematic until your arrest on 27 January 2023. You also used gamma-hydroxybutyrate (GHB) from the age of 23, as well as prescription pills.
34You report not having used illicit drugs since the day of your arrest.
Criminal Record
35You have admitted your criminal record. It dates back to 27 November 2009. On that occasion you appeared before the County Court on charges of aggravated burglary, intentionally causing injury, and common law assault. You were sentenced to 22 months at a youth justice centre.
36You have served numerous periods of imprisonment. You have breached community correction orders and have a number of convictions for violent offences, drug offences, and driving offences. Most recently, prior to this offending, in August 2022, you were charged with unlicensed driving, driving whilst exceeding the prescribed concentration of alcohol, possessing a controlled weapon without excuse, possession of cannabis, and committing an indictable offence on bail. You then received monetary penalties and a licence disqualification.
37Your previous offending is relevant to my assessment of the need for specific deterrence, protection of the community from you, and your prospects of rehabilitation.
Mental Health Issues
38A report of Rebecca Fakhri, psychologist, dated 9 October 2024, was tendered on your behalf.
39Regarding your offending you told Ms Fakhri that several days before you offended, a very close friend had passed away. You struggled to deal with your grief and self-medicated with illicit substances. In 2019 you witnessed a friend get shot and you were also stabbed in the throat with a machete. Two days after your friend’s shooting you were kidnapped by the shooter. You suffered a number of mental health issues following those events and received psychiatric treatment. I have not been provided with reports from the psychiatrists who treated you.
40With regard to Mr Karpas, you described him as an 'old friend' and that you and he had been arguing back and forth for several months. You stated that you went to his house seeking revenge after he had thrown an aerosol can at your house. You stated that your mental health was poor and that you were under the influence of four alprazolam pills, methylamphetamine, and alcohol. You believe you were acting out of fear and anger.
41Ms Fakhri assessed your risk of reoffending to be at the moderate level. In her opinion, your childhood experiences of abuse and repeated trauma have resulted in a diagnosis of Post-Traumatic Stress Disorder (PTSD) characterised by high levels of intrusive symptoms, avoidance behaviours, such as substance use, and negative alterations in cognition and mood. Your depression and anxiety symptoms are likely related to your former experiences and adverse childhood experiences. She states that individuals with a history of trauma are more likely to respond to situations disproportionately, particularly if they perceive there is a threat or provocation, due to a lower threshold of arousal and an inherent instinct to protect themselves. In your case, she considers that your ability to respond was further reduced by substances inhibiting consequential thinking, reasoning and judgment.
42Ms Fakhri states that it appears that your Post-Traumatic Stress Disorder symptoms are currently in remission, however, a change to your psychosocial circumstances may result in a re-triggering of that condition. Testing indicated that you did not currently meet the criteria for Post-Traumatic Stress Disorder or Complex Post-Traumatic Stress Disorder.
43Ms Fakhri also opines that you would have previously met the criteria for Stimulant and Sedative/Hypnotic/Anxiolytic Use Disorders, however these are in sustained remission and you have not used substances since January 2023.
44Reports from Graham Emery, clinical psychologist, dated 8 December 2023 and
9 August 2024 were also tendered on your behalf. Mr Emery states that you have been 'working' with or 'talking' to him since July 2023. He states you have gone from strength to strength, and you have been clean of illicit drugs for over
10 months. The first report is a short report of some four paragraphs and does not detail any psychological diagnosis or treatment undertaken. In his second report, Mr Emery states you have a diagnosis of bipolar disorder. He states he has helped you process through your accumulated trauma which was a trigger for your addictions. In his opinion, you have been proactive and positive in dealing with your past and your addictions. He states you have remained free of your addictive cycle for the 12 months he has been supporting you. Mr Emery’s reports are very brief and do not detail the bases of his opinions. I was told that you have continued to speak with Mr Emery since those reports were written.45A Court Integrated Services Program report dated 14 February 2024 was also tendered on your behalf. You were initially assessed on 19 May 2023. You have attended a total of 19 case management appointments since being granted bail on 30 May 2023. You completed your mental health care plan by attending on
Mr Emery. You identified that although you have made vast progress in addressing your mental health issues, you recognised the need for further psychological support. You also reported maintaining abstinence from illicit substances. According to the author of the report, Ms Rendina, you have consistently presented as reflective and insightful in nature, citing that a year ago you would not have taken accountability for your behaviour. You successfully completed the program over approximately eight months. It is an extremely positive report that
Ms Rendina has written.46A letter from Khushee Babbar, counsellor with the Salvation Army, dated
12 February 2024, confirms your enrolment in their anger management program and attendance on five occasions. As at the date of the report, you had one session left to complete. You have now completed that program.47Also tendered on your behalf was a reference from Geraldine Hookem, senior property manager at Ray White Real Estate. Ms Hookem states she has known you for 3 ½ years on a professional and personal level. She states you have a good work ethic and have always been reliable. You are one of the main skilled workers they use and trust.
48You have also joined the House of Refuge in Hallam and attend church every Sunday. You were baptised on 1 September 2024. Bishop Jonassen, in his reference dated 29 July 2024, states that he has known you and your family for over a year. He has witnessed your character, dedication and commitment to the church community. You are a willing volunteer for numerous Church activities. Bishop Jonassen states you are an admirable character showing compassion and empathy. He has spoken to you about your offending and states you have expressed genuine remorse and embarrassment.
49I have also read and had regard to the references from Tara McKenzie and your daughter, Shante. I note the efforts you are making to support your family and children.
50A report from Dr Thomas Shashian confirms that you have been compliant with your opioid replacement therapy. He states you have never missed appointments and have been attentive to your health and psychological well-being. Dr Shashian states that you have managed your addiction and reduced your replacement therapy doses without any relapses. He has observed your interactions with your partner and family and has noted you to be caring and thoughtful. Your counsel informed me you continue to receive your replacement therapy doses.
51A bundle of certificates of completion of various courses you have undertaken were also tendered on your behalf. I have read and had regard to each of the courses you have undertaken in your efforts to rehabilitate.
52You instructed your counsel that your brother died, at the age of 38, in August 2023. I was informed this was an extremely difficult time for you but rather than relapsing into drug use, to your credit, you found other positive ways to deal with the impact of his death upon you.
Personal circumstances and background – Ngatokoono Tako
53Mr Tako, you are now 30 years of age. You were born in the Cook Islands in August 1994. You were raised by your mother and father, whom you report were both very strict. You state you were exposed to domestic violence and corporal punishment.
54You have six siblings, three brothers and three sisters, all of whom live in Melbourne.
55You were eight years of age when your family migrated to Australia and settled in Springvale. Your mother has worked in factories and your father is a night shift supervisor with a hardware company. Your family came to Australia in the hope of a better life.
56You and your family were members of a local Pentecostal church which you attended on a weekly basis. You stopped going to church when your child died in 2017.
57Your education is very limited. You attended Secondary College until you were expelled in Year 8 after you threatened a teacher. That was your last formal education. I was told that you were a frequent truant in the lead up to the expulsion, and that you have struggled to learn the English language.
58You have had a number of jobs since leaving school, including in warehouses and factories. You worked as a truck jockey for approximately one or two years and in 2016 you commenced working with your brother and cousin in the concreting industry. Since your release on bail you are working constructing house slabs.
59You have two surviving children with your former partner Nina. You have regular contact with your sons and maintain a positive relationship with your former partner. You and Nina had a third son together who passed away in 2017 at
14 months of age. He died in your presence from an asthma attack while in the Emergency Department of a hospital. While in custody on remand, you underwent counselling treatment to deal with intrusive memories and nightmares.60You have three daughters aged four, three and two with your current partner Toni. You all live together with your parents in Carrum Downs.
61A report from Warren Simmons, psychologist, dated 2 October 2024, was tendered on your behalf. You told Mr Simmons that you began smoking methylamphetamine in 2014. Your use increased from smoking small amounts irregularly to daily use after about two years. Your use increased again after the death of your son to between 1 gram and 1.7 grams daily. You acknowledged to Mr Simmons that you become very aggressive when using methylamphetamine. In 2022, you began using Xanax as an antidote to the effects of methylamphetamine. You also reported daily use of alcohol from the age of 13 until your remand on these matters. You have also experimented with cocaine, amphetamines and GHB.
62Your use of methylamphetamine continued until you were remanded in February 2023. You report you have not used methylamphetamine since your release from custody on 29 August 2024.
63Regarding your offending, you told Mr Simmons that the victim had thrown an item that had missed the son of your co-accused. You said you were substance affected at the time and went with your friend to the victim’s house. You stated it was a 'stupid mistake' that you made, and the victim did not deserve what had happened to him. Mr Simmons considered that you appeared remorseful and that you did not try and justify your behaviour in any way.
64You are not an Australian citizen and Mr Simmons noted that the prospect of your potential deportation is constantly in your thoughts given the uncertainty of what will happen to you.
65Mr Simmons reported that your mental state examination was unremarkable. While you reported having flashbacks to your son’s death and other variable mood symptoms, he opined that you do not currently suffer from Post-Traumatic Stress Disorder and that any symptoms you were having may have resolved due to you accessing counselling while in custody.
66You have admitted your criminal record. Your criminal record dates back to 2014 when you were convicted for a range of driving offences and placed on a community correction order. Your criminal history is limited to driving offences and methylamphetamine use. You have contravened a community correction order on three occasions. Importantly, you do not have any previous convictions for offences of violence.
67A number of supporting documents were tendered on your behalf at the plea hearing. You completed a number of courses while on remand. Character references from your father and your partner were also tendered on your behalf. You enjoy strong support from your family, in particular your partner Toni who states that you have taken the opportunity to better yourself since your release on bail.
Prosecution submissions
68Mr Devlin, who appeared at the plea hearing, submitted that the most significant of the injuries were the two wounds to Mr Karpas’ leg, inflicted by you, Mr Allardyce, using the star picket, while you Mr Tako assisted him.
69Mr Devlin submitted that the offending is objectively serious. He noted that the offending was pre-meditated and that you, Mr Allardyce, arranged for Mr Tako to join you in your plan to seek retribution for the earlier can-throwing incident.
70It was submitted that you, Mr Allardyce, played a greater role than Mr Tako, and
Mr Devlin noted you have prior convictions for violent offending. He accepted that those prior convictions are now somewhat dated and that since your release from custody on 30 May 2023, you appear to have done well in your efforts to rehabilitate.71While Mr Devlin accepted that a combination sentence was open in your case,
Mr Allardyce, he did not concede your counsel’s submission that you should not serve any further period of time beyond the 64 days you served on remand.72Mr Devlin did not submit in your case Mr Tako, that I should sentence you to a greater period than the time you have already served.
Defence submissions – Mr Allardyce
73In helpful written submissions, your counsel, Mr Allardyce, submitted that I should sentence you to a term of imprisonment not exceeding the time already served of 64 days. In the alternative, it was submitted that I impose a community correction order, either alone or in combination with the time you have served.
74In oral submissions, Ms Coulson submitted that you should be sentenced to a term of imprisonment not exceeding presentence detention in combination with a community correction order. This was notwithstanding a sentence indication I had earlier given on the charge of intentionally causing injury of 16 months’ imprisonment.[1] In response to that indication, Ms Coulson stated that the indication, when given, represented the maximum sentence only and was given in the context of a different factual basis that included the injuries having been inflicted while you were inside the victim’s home. Furthermore, a psychological report has since been prepared that provides additional information to your background and psychological state at the time of your offending.
[1] Sentence indication given on 20 August 2024.
75Ms Coulson submitted that your offending fell within the midrange level of seriousness. She acknowledged that I am to have regard to the fact that a weapon was used and that the injuries you inflicted are serious examples of 'injury'.
Ms Coulson also submitted that the victim’s injuries have resolved and he appears to have made a full recovery. This submission was based on the victim not requiring on-going rehabilitation. Ms Coulson submitted that while the victim stated that he was unable to work, that could not be from the physical injury sustained in the assault upon him.76Regarding your motive for the offending, Ms Coulson stated it was 'somewhat' of a reaction to Mr Karpas’ earlier behaviour in throwing an aerosol can into your front yard. At that time, your partner, four-year-old son, and another male were in the front yard. Ms Coulson submitted that there was a risk of someone being hit by that object.
77Ms Coulson submitted that your conduct of intentionally causing injury to
Mr Karpas was done in a high state of anger and that the offending occurred over a very short period of time. It was conceded that your offending was not proportionate to what occurred earlier and does not raise any form of justification.78Ms Coulson also submitted that your offending was unsophisticated and did not involve a high degree of planning. You were known to the victim and made no attempt to disguise yourself. You were easily detected. Ms Coulson did not cavil with my suggestion that it appeared to be premeditated behaviour, including that you went to Mr Tako’s and enlisted his assistance.
79Ms Coulson relied upon your plea of guilty to the charge; the general application of the principles in Bugmy v The Queen[2] and DPP v Herrmann[3] as operating to reduce the level of your moral culpability; the matters set out in Ms Fakhri’s psychological report; the delay since being charged; parity of sentence with your co-offender; and your efforts towards rehabilitation since being bailed in May 2023.
[2] [2013] HCA 37
[3] [2021] VSCA 160
80Regarding the delay, it was initially suggested that it was in the order of some two years and four months between being charged and trial. However, you were arrested on 27 January 2023 and your trial commenced on 19 August 2024. This is a period of just under 19 months. Nevertheless, reliance was placed on the fact that you have had the charges hanging over you for a significant period of time and the anxiety caused to you at the prospect of a lengthy custodial sentence being imposed. Reliance was also placed on the fact that during the period of delay you have taken significant steps to rehabilitate yourself and have not been in any further trouble.
81Ms Coulson submitted that regard should also be had to Ms Fahkri’s opinion that your conditions place you at risk of experiencing custody more onerously than someone without your conditions. Ms Coulson submitted that principle 5 of
The Queen v Verdins[4] applies should you be sentenced to a term of imprisonment beyond the time you have already served on remand.[4] (2007) 16 VR 269
82Reliance was also placed on the decision in Boulton v The Queen[5] that each of the relevant sentencing considerations can be met with the imposition of a community correction order.
[5] (2014) 46 VR 308
Defence submissions – Mr Tako
83Mr Bloemen, on your behalf Mr Tako, after setting out your personal circumstances and background, relied upon a number of matters in mitigation of sentence. I summarise them as follows:
84First is your plea of guilty to the charge of intentionally causing injury. Your offer to plead guilty to that charge was made on 23 February 2024 on the basis that you were complicit in the offending with Mr Allardyce.
85Mr Bloemen next relied upon your prospects of rehabilitation, which he submitted was a highly relevant consideration given you have only recently turned 30 years of age. He referred to your strong family support, stable accommodation, good work history and the deterrent effect of the significant period of time on remand as protective factors. Mr Bloemen submitted there is cause for optimism with regards to your prospects.
86Mr Bloemen also relied upon the delay between your offending and trial. He too submitted it was a period of two years and four months. As earlier stated, that period is incorrect.
87Mr Bloemen relied upon the prospect of your visa being cancelled and your deportation as a matter in mitigation. Although you came to Australia at a young age, you have never taken out Australian citizenship. You are therefore at risk of deportation. Mr Bloemen submitted that this has weighed heavily upon you since your remand, as has the risk of losing the opportunity to settle permanently in Australia with your family. These concerns, it was submitted, added to the burden of your remand and will add to the burden of any imprisonment that I may impose.
88Mr Bloemen submitted that your drug addiction is a matter that should mitigate your sentence. As I understood his submission, your heavy drug use at the time you offended related to the traumatic death of your son and was a substantial factor in your involvement in the offending. Mr Bloemen relied upon the decision in TheQueen v Lacey[6] in support of his submission.
[6] [2007] VSCA 196
89Regarding the victim impact statement, Mr Bloemen submitted there was no evidence of psychological injury led at trial. While not challenging anything in the impact statement, Mr Bloemen submitted that Mr Karpas’ reference to the psychological impact upon him is not the same as the medical evidence produced at trial in relation to the physical injuries he suffered.
Sentencing Considerations
90The objective gravity of the offending in this case is serious. Over what was a very trivial incident, the reaction, particularly of you Mr Allardyce, was completely disproportionate. It is clear that you attended Mr Karpas’ property in a high state of anger, seeking retribution for that earlier incident. You enlisted the aid of
Mr Tako and together you drove to Mr Karpas’ home. You, Mr Tako, had no reason to accompany Mr Allardyce but you did, arming yourself with a nail gun. From the manner in which you both attended at Mr Karpas’ home, banging on his gate, kicking in his front door, and being armed with a nail gun, your offending was, in my opinion, clearly premeditated.91Once at Mr Karpas’ home you both engaged in aggressive, forceful and violent conduct. It involved the use of weapons. The fact that the offending was unsophisticated and detection inevitable, should Mr Karpas have chosen to report the matter to police, is a matter of slight weight only. In both your cases the level of your moral culpability, in my opinion, is relatively high, although in your case
Mr Allardyce, it is reduced by reason of your disadvantaged childhood, a matter to which I will return shortly.92The fact that you may have been under the influence of illicit drugs does not provide either of you with any excuse or justification. I do not accept, Mr Tako, your counsel’s reliance on the decision in Lacey as reducing your level of moral culpability. You commenced to use methylamphetamine approximately 10 years ago. Mr Simmons, at paragraph 24 of his report, wrote the following:
'… Mr Tako revealed he was using methamphetamines at the time, a drug which he had previously acknowledged he had been aggressive when using.'
93In R v McKee,[7] Buchanan JA referred to what Spiegelman CJ said in R v Henry –
'[S]elf-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice.'
[7] [2003] VSCA 16
94You were approximately 20 years old when you started to use methylamphetamine and you knew it made you aggressive. Moreover, I am not satisfied that the commission of this offence was linked to or was a consequence of your use of methylamphetamine. Your motive was one of retribution. You told Mr Simmons that the victim had thrown an item that had missed Mr Allardyce’s son, and that you went to Mr Karpas’ home to address Mr Karpas’ behaviour. You took with you a nail gun.
95The fact that Mr Karpas threw a can onto your property, Mr Allardyce, does not in any way operate to reduce your level of moral culpability. Put plainly, persons are not entitled to take the law into their own hands, and Courts must deter people from doing so.
96In assessing the seriousness of this offending, I have also had regard to the harm suffered by Mr Karpas, not just his physical injuries, but all the matters set out in his victim impact statement. I am not able to agree with the submission of
Ms Coulson that Mr Karpas appears to have made a full recovery. That is not borne out in his unchallenged impact statement in which he speaks of psychological difficulties requiring treatment and severe scarring and pain from the wound. Nor am I able to agree with the general submissions of Mr Bloemen concerning
Mr Karpas’ impact statement. It is the experience of the courts, as was recognised by Mr Bloemen during argument, that there often is psychological sequelae following such offending. That said, however, I am also mindful not to allow the impacts upon Mr Karpas to overwhelm other sentencing considerations.97I accept that you, Mr Tako, played a lesser role in the offending. It was you,
Mr Allardyce, who sought out Mr Tako’s assistance, and you who picked up the star picket from the front yard, and you who used it to inflict the injuries to Mr Karpas’ leg. However, you Mr Tako went inside of Mr Karpas’ house, started fighting with him, and you were complicit in Mr Allardyce’s conduct.98In sentencing each of you I must also have regard to the maximum penalty of
10 years’ imprisonment that may be imposed for the offence of intentionally causing injury.99You both pleaded guilty to the charge. In your case Mr Allardyce, I was informed that you offered to plead guilty to that charge on 22 May 2024, following a case assessment hearing. And as I already mentioned, in your case Mr Tako, I was informed that you offered plead guilty to that charge on 23 February 2024, the day after the case assessment hearing.
100You are both entitled to the utilitarian benefits that flow from your pleas of guilty, which were offered many months before the trial occurred. The trial on the charge of home invasion, given the jury’s verdicts, was unnecessary and does not deny you the benefits of your pleas of guilty. You have both indicated a willingness to facilitate the course of justice and you have both accepted responsibility for intentionally causing injury to Mr Karpas. I also accept that your pleas to the charge, in both your cases, is indicative of your remorse.
101I have had careful regard to the efforts you have made, Mr Allardyce, to rehabilitate. I have already referred to those efforts. They commenced on your release on bail, and you appear to be sincere in your efforts over the last
19 months. At this time, I am cautiously optimistic as to your prospects of rehabilitation. However, given your history of trauma, drug use, and offending, I consider that further treatment, as recommended by Ms Fakhri, is required.102In your case Mr Tako, I have regard to the fact of your stable accommodation, support from your family, and the deterrent effect of the significant time you have spent on remand. There is also cause to view your prospects with a degree of optimism.
103In sentencing you both I consider the sentencing considerations of general deterrence and denunciation to be of paramount importance. Others should understand that conduct of the kind in which you both engaged will be met with stern punishment. As I have already mentioned, there is no place in our community for people to take the law into their own hands and engage in such violent criminal behaviour, particularly with weapons. Your conduct, through the sentence to be imposed, is to be denounced by this Court. The sentence should also serve to deter each of you from further criminal offending, protect the community from you, and ensure that you are justly punished for your offending. Specific deterrence is also important in your case Mr Allardyce given your extensive criminal record.
104In determining the appropriate sentence I have also had regard to current sentencing practice for the offence of intentionally causing injury. It is clear from my review of sentencing cases, that the circumstances in which this offence is committed vary widely, as do the personal circumstances of the offenders. Sentences passed in other cases are not binding precedents, but they do provide a general overview of sentences imposed for offences of a similar character and may play a part in informing the instinctive synthesis. In the end, however, I must sentence you on the basis of your particular circumstances, the circumstances of the offence, and any mitigating or aggravating features present.
105I accept that by reason of your difficult childhood and adolescence, Mr Allardyce, your level of moral culpability is less than that of an offender whose formative years have not been marred in the way yours have been. Accordingly, in line with the authorities relied on by your counsel, the sentence to be imposed will be moderated to reflect your disadvantaged childhood.
106With regard to your counsel’s submission concerning the application of Verdins’ principle 5, I find the opinion of Ms Fakhri too tenuous and speculative to be satisfied on balance that your conditions (or their foreseeable recurrence) may mean that a sentence of imprisonment will weigh more heavily on you than it would on a person in normal mental health. Ms Fakhri, at paragraph 123 of her report, writes that your conditions (being a past diagnosis of Post-Traumatic Stress Disorder[8] and a history of maladjustment) make you more prone to emotional dysregulation which can result in disproportionate, impulsive, reactive, behaviours which are heightened under stress and within a volatile prison environment.
Ms Fahkri goes on to state that this may result in unintentional sanctions and conflict with other prisoners and with correctional staff, placing you at risk of experiencing custody as more onerous than someone without your conditions.Ms Fakhri did not comment on how you coped in custody on the previous occasions you were incarcerated.[8] At paragraph 111 of her report Ms Fakhri stated you did not currently meet the criteria for PTSD or Complex PTSD, although she was of the opinion that you had a history of PTSD.
107Regarding the question of delay, I consider the appropriate period is that from the date of your arrest, in your case Mr Allardyce, 27 January 2023, and in your case Mr Tako, 8 February 2023, to the date of this sentence. This is a period of some 23 months. It is by no means an inordinate period of time, however, it is not an insignificant period over which you, Mr Allardyce in particular, have demonstrated your commitment towards rehabilitation, and not an insignificant period of time during which you both have endured the anxiety in not knowing your fate. This latter consideration is particularly important in your case Mr Tako given the prospect of deportation that you face.
Sentence
108Mr Allardyce, I have given anxious consideration to the considerable progress you have made towards your rehabilitation and the sentence that I must impose. Notwithstanding those very commendable steps you have taken, I consider the seriousness of your offence and the paramount needs for general deterrence and denunciation calls for a greater sentence than the time you have served on remand. I do not consider that those and the other sentencing objectives I must take into account can be met with the imposition of a community correction order alone or a combination sentence with gaol time equivalent to the time you have served on remand. I consider a combination sentence is appropriate but with additional time to be served.
109You have been assessed as suitable for a community correction order notwithstanding previous breaches of community correction orders and other court orders. You were assessed by the Corrections Victoria assessing officer as representing a medium risk of general re-offending.
110Having regard to the circumstances of your offending, your personal circumstances, and the relevant factors I am required to take into account under s 5 of the Sentencing Act 1991, I propose to convict and sentence you to a term of imprisonment of 8 months and place you on a community correction order for a period of 24 months commencing upon your release from prison. Before I may place you on a community correction order, you must agree to that course. The order I propose will have the following conditions, I ask you to please listen carefully to those conditions:
a) The order will last for 24 months and will commence upon completion of the term of imprisonment.
b) You will be required to attend Frankston Community Correctional Services within two clear working days of the order starting.
111The mandatory terms that apply to all community correction orders are that:
a) You must not commit another offence for which you could be imprisoned during the time that the order is in force.
b) You must comply with any obligation or requirement prescribed by Regulation 15 of the Sentencing Regulations. That means you must not attend at the Office of Corrections, or any other place they direct you to attend, under the influence of drugs or alcohol.
c) You must report to and receive visits from the Secretary or his or her delegate.
d) You must let a Community Corrections officer know within two clear working days of you changing your address or job.
e) You must report to Community Corrections within two clear working days of the order starting.
f) You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate.
g) You must obey all lawful instructions from and directions of the Secretary or his or her delegate.
112The order will be subject to the further conditions:
a)You must be under the supervision of a Community Corrections officer for a period of 24 months.
b)You must undergo assessment and treatment including testing for drug abuse or dependency, as directed by the Regional Manager.
c)You must undergo any mental health assessment and treatment and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the Regional Manager.
d)You must participate in programs and/or courses that address factors relating to the offending, as directed by the Regional Manager.
113Mr Allardyce, would you like your counsel to approach you and explain any of those conditions to you?
114OFFENDER ALLARDYCE: Yes please, Your Honour.
115HIS HONOUR: Yes, certainly. You may do so, Ms Coulson.
116MS COULSON: Thank you, Your Honour. Your Honour, he understands those conditions and consents to the order.
117HIS HONOUR: All right. Well I will take your consent to the order through your counsel, Mr Allardyce. I must also caution you that should you breach the community correction order you will be brought back before this Court to be resentenced for the breach, and for any other offence that is charged.
118Very well. I sentence you to a period of eight months' imprisonment and a community correction order in the terms that I have already explained to you.
119Pursuant to s18 of the Sentencing Act, the period of imprisonment already served under your sentence Mr Allardyce is reckoned at
64 days.120Mr Tako, please stand, though you may remain seated Mr Allardyce.
121Having regard to all of the circumstances of your case, you are convicted and sentenced to a term of imprisonment of eight months.
122Pursuant to s18 of the Sentencing Act, the period of imprisonment already served under your sentence is reckoned at 568 days.
123In your case, Mr Allardyce, had it not been for your plea of guilty to the charge of intentionally causing injury the sentence I would otherwise have imposed is one of 16 months imprisonment with a non-parole period of 12 months.
124And in your case, Mr Tako, the sentence I would have otherwise imposed had it not been for your plea of guilty is one of 12 months imprisonment with a non-parole period of 8 months.
125The different sentences that I have imposed on each of you reflects the differences in your respective roles during the commission of the offence, and your different personal circumstances, including your respective criminal histories. I consider that your role Mr Allardyce was more serious than that of your co-offender. I also have regard to the fact that this is, Mr Tako, your first time in custody and your first offence involving violence.
126The sentences imposed are less than those I previously indicated having regard to a number of matters including the evidence that emerged during the trial, the additional material filed on behalf of each of you, particularly the psychological reports, and the additional time that has elapsed since the indication was given without further offending.
127I will make the disposal and forfeiture orders that have been sought.
128You may be seated Mr Tako.
129Mr Tako, you may step out of the dock there.
130Thank you, officers.
131May I thank counsel for your assistance in this matter. Adjourn the court please.
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